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INDIE LAW
it for less. The fact is, if the writer has neither
savvy representation nor ties to a big publish-
ing house that understands what traditional
Literary Option Purchase Agreements look
like, you may be able to carve out terms for a
straight-out purchase of the rights for a dollar
amount that is within reach. The advantage
of a straight purchase is that you’ll forever
control those rights until you decide to option
or sell them, and you’ll never be under a time
limit for which to make the film, as is the
case when dealing with a traditional Option/
Purchase Agreement. With more books being
self-published and the ease with which the
Internet helps authors engage in self-publish-
ing growing each year, straight purchases are
more viable today than they’ve ever been.
THE TRUSTY LITERARY OPTION/
PURCHASE AGREEMENT
Under a Literary Option/Purchase
Agreement, a producer pays an upfront fee for
the writer to give the producer the exclusive
assignable right to produce a film based on
the property being optioned. If the producer
is successful and capable of commencing
production (or is otherwise ready to pay the
purchase price) before the option expires, then
the producer (or his or her assignees) will own
the project.
Options usually have an initial term of one
year and that term can be subject to mul-
tiple extensions in exchange for more option
payments. The initial option payment is
usually applied against the ultimate purchase
price, but the extended options are generally
not applied against the ultimate purchase
price. The Writers Guild of America (WGA)
mandates that the minimum option payment
paid upfront must be at least 10 percent of the
ultimate purchase price. The WGA has some
exceptions for low-budget films under their
low-budget agreements.
SHOPPING AGREEMENTS: THE UGLY BASTARD
CHILD OF THE TRADITIONAL LITERARY
OPTION/PURCHASE AGREEMENT
For those producers for whom a $10,000
Option Payment might as well be a $100,000
Option Payment, the industry has, to the
chagrin of the WGA, developed a producer
cost savings technique that is the ugly bastard
child of the Option/Purchase Agreement—a
“Shopping Agreement,” or “Producer’s Attach-
ment Agreement.” These agreements give a
producer a certain amount of time to try and
find financing for the project in exchange for
little to no money paid up front to the owner
of the rights.
Shopping and Attachment agreements
are usually for less duration of time than
Option/Purchase Agreements—say, six to
nine months. Shopping and Attachment
Agreements also should differ from Option
Agreements, in that there should not be a
purchase price set at the start of the Shop-
ping or Attachment Agreement. Rather, a
proper Shopping Agreement should permit
the Rights Holder to negotiate his or her own
deal with the ultimate financier, but with the
condition that no deal can be entered unless
the producer is attached.COLLABORATION AGREEMENTS AND JOINT
VENTURES ARE GREAT WAYS TO SECURE
RIGHTS WHEN SHORT ON CASH
Finally, if a producer cannot afford a
straight purchase or traditional option/pur-
chase, then the producer should consider pur-
suing securing rights to existing stories and
developing them into film projects based on a
business model that utilizes a “Collaboration
Agreement” or a “Joint Venture Agreement.”
These types of agreements recognize that the
person with the great story has as much to of-
fer as the person looking to produce that story.
Therefore, if money is not going to be
paid out for the exclusive option to control
the property for a certain period, then the
parties act as partners. The person who holds
the rights contributes those rights to the col-
laboration or joint venture, and the producer
contributes his producing skills and financing
abilities to the collaboration or joint venture.
In turn, both parties will be deemed 50-50
rights holders of the property, and the sale
of the property to a third party will be split
50-50, with each side being fully aware and
fully involved in the transaction. The writerwill usually get some type of producer credit
and profits will be equally shared. Yes, the pro-
ducer is giving up more than he or she would
otherwise give up if a traditional straight-out
purchase or traditional WGA governed Op-
tion/Purchase agreement were affordable. But,
if the producer is unable or unwilling to pony
up the proper dough, things need to be bal-
anced out for the rights holder in other ways.
Such collaborations are fair to both sides,
and good karma generally comes to such
productions that utilize this method. But the
fact remains that many agents and attorneys
presented with a fair, 50-50 deal are not ac-
customed to seeing fair deals, and their initial
reaction is often to put the kibosh on it.
Many savvy producers have profited from
adopting a business model that involves
securing rights from many different sources.
The world is filled with fascinating life rights
from individuals worthy of having a film
made about their unique experiences, and
there are countless books and stories waiting
to be converted into film scripts. Make a call
or send a letter to the original people that
control those rights without any connection
to the film industry. Even if it comes from an
unknown producer, it won’t go unappreciated.
Today’s inexpensively optioned story could be
tomorrow’s wave-making adapted screenplay
and lucrative payday. MMDavid Albert Pierce, Esq. is MovieMaker’s
long-running entertainment law maven. He is
also the Managing Partner of his entertainment
law firm in Beverly Hills, Pierce Law Group,
which specializes in representing independent
moviemakers.RIGHTS TO REMAIN GREEN-LIT: BEFORE DIRECTOR SPIKE LEE (L) AND STAR JOHN DAVID WASHINGTON’S (R)
BLACKKKLANSMAN COULD GO BEFORE CAMERAS, THE RIGHTS TO POLICE DETECTIVE RON STALLWORTH’S MEMOIR
HAD TO BE LOCKED UP